In re N.F., a Person Coming Under the Juvenile Court Law.
E076330
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Filed 8/20/21
CERTIFIED FOR PARTIAL PUBLICATION*
Riverside County Superior Court No. RIJ1600422
In re N.F., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. E.G., et al., Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Judge. Dismissed in part and affirmed.
Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant E.G.
Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant, D.F.
Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and Julie Koons Jarvi, Deputy County Counsel,
OPINION
Months after the juvenile court denied E.G. (Mother) reunification services, Mother filed a petition under
BACKGROUND
I. Prior Dependency Case
The family came to the attention of the Riverside County Department of Public Social Services (DPSS) in May 2016. Mother and N.F. tested positive for methamphetamine and amphetamine at N.F.‘s birth. Mother was 25 years old and had been using methamphetamine since age 18. She admitted to using throughout her pregnancy. Father reported drinking 12 beers per day on the weekends and using marijuana. The parents were not married and did not live together. Father was unsure whether he could care for N.F.
DPSS filed a petition under
Mother received reunification services until the six-month review hearing, at which N.F. was returned to Mother, and roughly 32 months of family maintenance services after that. Father received reunification services until the 18-month review hearing, at which N.F. was placed with both Mother and Father, and roughly 19 months of family maintenance services after that. When the court returned N.F. to Mother at the six-month review hearing, the court placed N.F. with Mother on the condition that Mother reside with maternal grandmother. N.F. had three placements before her return to Mother‘s care.1
In August 2019, after the parents had received services for over three years, the court granted the parents joint legal and physical custody of N.F. and terminated jurisdiction.
Father completed an outpatient substance abuse treatment program in December 2016. N.F. did not reside with Father during the 2016-2019 case, but he visited the child. The social worker noted that Father was “not the primary caregiver for the child” and that he had “never lived with or provided care for the child by himself.”
II. Detention in the Present Case
The present case began five months after the court terminated jurisdiction in the first case. In January 2020, DPSS received a referral alleging that Mother had relapsed and crashed her car several times while driving with N.F. When DPSS interviewed Mother, she tested positive for methamphetamine and amphetamine and admitted to using within the last several days. She said that she had gotten into a car accident in February 2019 but denied that she was under the influence at the time. Mother had been charged in June 2019 with burglary and unauthorized use of another‘s personal identifying information to obtain credit. (
Mother reported that Father got “drunk” every weekend and that she did not allow him to have unsupervised visits with N.F. She also claimed that Father had a history of domestic violence and described a December 2019 incident in which Father was verbally aggressive and threw her cell phone across the neighbor‘s yard.
Father reported that he was concerned about Mother‘s methamphetamine use, but he did not think that he could care for N.F. by himself. He admitted to having “an alcohol issue.” He had recently received a citation for possessing an open container of alcohol while driving. (
In February 2020, DPSS filed a petition under
III. Jurisdiction and Disposition
When interviewed for the jurisdiction and disposition report, Mother indicated that she had relapsed four or five months after completing her last outpatient program. Mother reported that she had been using methamphetamine “off and on” since age 18 or 19. She described another domestic violence incident in which Father choked her and pushed her into a door.
Father reported that he had been drinking since age 15. The night before his interview with the social worker, Father had shared a 12-pack of beer with his brother. Father said that he had been sober for five months and started drinking again because he was stressed about Mother‘s relapse. He denied any domestic violence but also said that “a long time ago,” he broke Mother‘s windshield after she broke his cell phone. N.F. stayed with him during the weekends after the court ordered joint legal and physical custody. Paternal grandmother helped him care for N.F.
In February 2020, Father visited N.F. three times and missed three visits. During the first visit, he seemed tired and lay on the floor while N.F. played with toys. He engaged with N.F. during most of the second visit but was also on his cell phone. He interacted with N.F. appropriately and was attentive during the third visit.
During the same period, Mother visited N.F. five times and missed one visit. At two of the visits, Mother tested positive for methamphetamine and amphetamine but did not appear to be under the influence. Mother was generally attentive to N.F.‘s needs and interacted appropriately with the child.
At the jurisdiction hearing in March 2020, the court found the following allegations true: (1) Mother had an unresolved history of abusing methamphetamine and continued to use while caring for N.F.; (2) Father had an unresolved history of abusing alcohol and continued to abuse it while caring for N.F.; (3) each parent knew or reasonably should have known of the other‘s substance abuse and failed to protect N.F.; (4) both parents had a dependency history and received services from May 2016 to August 2019; and (5) Mother had a criminal history.
In an addendum report prepared for the disposition hearing, DPSS reported that Mother had started another outpatient program. Mother indicated that she had been drinking beer every day and had replaced methamphetamine with marijuana.
The court continued the disposition hearing several times. In March 2020, in-person visits were suspended because of the Covid-19 pandemic, and the parents had supervised video calls with N.F. from March to June 2020. The parents did not use their entire hour for the video visits, but the caregiver reported no concerns with their interactions. The social worker opined that N.F. was well bonded with both parents.
Mother stopped her outpatient program and started a 90-day residential treatment program in April 2020. Her drug test results were all negative in May and June 2020. The provider reported in June 2020 that Mother was meeting all of her treatment plan goals.
At the disposition hearing in June 2020, the court removed N.F. from the parents’ custody and denied them reunification services under
IV. Section 388 Petitions and Section 366.26 Proceedings
In July 2020, DPSS placed N.F. with maternal relatives who wanted to adopt the child. By October, N.F. had adjusted well to the placement and was thriving in the home. N.F. was well behaved and did not display any mental or emotional problems. The caregivers and N.F. were well bonded. The caregivers loved N.F., and the child sought them out for comfort, attention, and affection. The preliminary adoption assessment described their home as safe, stable, nurturing, and loving. The caregivers were committed to providing N.F. with a permanent home.
One of the caregivers supervised the parents’ visits. Mother visited approximately once per week, and Father visited once every other week. N.F. enjoyed seeing the parents, and the visits went well. Both parents called N.F. twice per day, once in the morning and once in the evening. But Mother stopped visiting in September 2020 because she was incarcerated and charged with possession of a controlled substance.
In October 2020, Father filed a section 388 petition requesting family maintenance services or, in the alternative, family reunification services. That same month, because Mother was still incarcerated, the court continued the
In December 2020, Mother filed a section 388 petition requesting six months of reunification services. Mother argued that she had a significant bond with N.F. and had maintained visitation with the child. She submitted a letter from her 90-day residential treatment program showing that she had successfully completed the program in July 2020. Mother wrote a letter to the court acknowledging that she had “some problems with the law,” but she said that she had been sober since completing her program. The petition also stated the Mother had stable housing and employment. Mother‘s letter indicated that she had renewed her cosmetology license and was working as a cosmetologist. She submitted an electricity bill as proof of her housing, but the bill showed that her electricity was going to be disconnected immediately unless she paid the past due amount of over $600.
The
The court denied both parents’ section 388 petitions.2 As to Mother, the court found that her circumstances were “changing” but “not changed” for purposes of section 388. The court also found that it was not in N.F.‘s best interests to grant the petition. The court noted that four-year-old N.F. had been in numerous placements since her birth and was finally in a stable home with relatives who were committed to adoption. The court found that N.F.‘s best interests were served by remaining in that home.
Mother testified when the court proceeded to the
once per week for one hour and called the child every day. N.F. called her “mommy.” Whenever N.F. saw Mother at visits, the child was “super happy” and started jumping. She wanted Mother to hold
The court admitted Father‘s testimony in support of his section 388 petition for purposes of the
DISCUSSION
I. Mother‘s Section 388 Petition
Mother argues that the court abused its discretion by denying her section 388 petition. We are not persuaded.
Section 388 permits the parent of a dependent child to petition the juvenile court for a hearing to modify an earlier order on the basis of changed circumstances or new evidence. (
In determining whether the petitioning party has carried his or her burden, “the court may consider the entire factual and procedural history of the case.” (In re Justice P. (2004) 123 Cal.App.4th 181, 189.) “Whether the juvenile court should modify a previously made order rests within its discretion, and its determination may not be disturbed unless there has been a clear abuse of discretion.” (In re J.C. (2014) 226 Cal.App.4th 503, 525.)
“Not every change in circumstance can justify modification of a prior order.” (In re S.R. (2009) 173 Cal.App.4th 864, 870.) The change in circumstances supporting a section 388 petition must be material. (See In re Ernesto R. (2014) 230 Cal.App.4th 219, 223 [requiring a “substantial change of circumstances“]; In re Mickel O. (2011) 197 Cal.App.4th 586, 615 [requiring the change in circumstances to be “‘significant‘” in nature].) In the context of a substance abuse problem that has repeatedly resisted treatment in the past, a showing of materially changed circumstances requires more than a relatively brief period of sobriety or participation in yet another program. (E.g., In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [parents’ most recent efforts at sobriety “were only three months old” and did not demonstrate changed circumstances]; In re Clifton B. (2000) 81 Cal.App.4th 415, 423 [parent‘s seven months of sobriety since his last relapse were insufficient to show changed circumstances, given the parent‘s history]; In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9 [“It is the nature of addiction that one must be ‘clean’ for a much longer period than 120 days to show real reform“].)3
As to the best interests element, after the court has bypassed or terminated reunification services and set the matter for a
The court did not abuse its discretion by denying Mother‘s section 388 petition here. First, the court properly concluded that Mother failed to establish sufficiently changed circumstances. Mother introduced evidence that she completed a 90-day residential treatment program in July 2020. Although that was a nominal change since the court had bypassed reunification services in June 2020, the change was not material.
The record discloses that Mother had a history of completing programs and then relapsing. She completed programs and relapsed at least twice during the first case. In the present case, she admitted that she relapsed four or five months after completing her last
Moreover, Mother‘s assertions that she was working as a cosmetologist and had housing did not establish material changes within the meaning of section 388. The court denied her reunification services because of her unresolved history of substance abuse. (
Second, the court reasonably determined that granting Mother reunification services would not promote N.F.‘s best interests. N.F. had been in Mother‘s care for approximately two and one-half years during the first case, but the child had also seen numerous foster care placements during her four years. At the time of the section 388 hearing, N.F. had been with her caregivers for roughly five months. She was thriving in their stable home and was bonded to them. They loved her and were committed to providing her permanency through adoption. In contrast, Mother‘s circumstances were unstable. There was no telling whether her latest efforts at sobriety would be lasting. Mother thus failed to establish that N.F.‘s “best interests in permanency and stability would be furthered by” derailing the child‘s adoption. (J.C., supra, 226 Cal.App.4th at p. 526.)
Mother argues that the court should have granted her petition because she made a prima facie showing on both the changed circumstances and the best interests elements. But the prima facie showing merely triggers the right to a “full hearing” on the petition. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) Mother received a full hearing on her petition. To be entitled to the requested relief, Mother had to make the required showings by a preponderance of the evidence. (Mickel O., supra, 197 Cal.App.4th at p. 615.) Mother does not argue that she carried that burden, and for the reasons already discussed, she did not.
In sum, the court did not abuse its discretion by denying Mother‘s section 388 petition. Mother failed to show materially changed circumstances or that the requested change would promote N.F.‘s best interests.
Both parents argue that the juvenile court erred by terminating their parental rights because the parental bond exception applied. We disagree.
When the juvenile court finds that a dependent child is likely to be adopted, it must terminate parental rights and select adoption as the permanent plan unless it finds that termination would be detrimental to the child under one of several exceptions. (
Under the parental bond exception, the parent bears the burden of proving three elements: “(1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child.” (Caden C., supra, 11 Cal.5th at p. 631 [construing
The substantial evidence standard of review applies to the court‘s findings on whether the parent has regularly visited and whether a beneficial parental relationship exists. (Caden C., supra, 11 Cal.5th at p. 639.) Whether termination of parental rights would be detrimental to the child because of the beneficial parental relationship is a discretionary decision that we review for abuse of discretion. (Id. at p. 640.)
The parent must show that his or her relationship with the child “promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) “A showing the child derives some benefit from the relationship is not a sufficient ground to depart from the statutory preference for adoption. [Citation.] No matter how loving and frequent the contact, and notwithstanding the existence of an ‘emotional bond’ with the child, ‘the parents must show that they occupy “a parental role” in the child‘s life.‘” (In re Breanna S. (2017) 8 Cal.App.5th 636, 646, disapproved of on other grounds by Caden C., supra, 11 Cal.5th at pp. 637, 638, fns. 6, 7.)
In determining whether the parental bond exception applies, “the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent‘s rights are not terminated.” (Autumn H., supra, 27 Cal.App.4th at p. 575.)
In this case, the court did not abuse its discretion by concluding that the parental bond exception did not apply. Both parents regularly visited N.F., although Father missed a number of visits early in the case, and Mother missed a number of visits during her incarceration. Both parents also maintained regular contact with N.F. through telephone or video calls. The record discloses that N.F. was excited to see them at visits, those visits went well, and at least as to Mother, N.F. was sad when the visits ended. The evidence thus showed that the parents shared an emotional bond with N.F.
But the parents had to show more than frequent and loving contact and an emotional bond. They had to show that they occupied “a parental role” in [N.F.‘s] life.” (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) There was no evidence that Father occupied such a role. N.F. never lived with Father. He visited the child during the prior case, and in the five months between cases, she stayed with him only during the weekends. In the present case, he never progressed beyond supervised visitation. “[A] child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child‘s need for a parent.” (Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
Moreover, assuming for the sake of argument that Mother came closer than Father to occupying a parental role in N.F.‘s life, neither parent demonstrated that his or her relationship with N.F. was so significant that severance of the relationship would greatly harm the child. N.F. may have been sad at the end of her visits with Mother, but the child did not exhibit any mental, emotional, or behavioral difficulties in the caregivers’ home. Instead, N.F. was thriving in the home of the extended maternal relatives, who loved her and were committed to adoption. N.F. and the caregivers were bonded. She sought them out for comfort, attention, and affection. There was no evidence that termination of parental rights would harm N.F. so severely as to “outweigh the sense of security and belonging an adoptive home would provide.” (In re Jason J. (2009) 175 Cal.App.4th 922, 938.)
Both parents argue that the court should have chosen a permanent plan of legal guardianship because of their relationship with N.F. But under
For all of these reasons, the juvenile court did not abuse its discretion by concluding that the benefit N.F. would receive from adoption outweighed any detriment that the child might suffer from termination of Mother‘s and Father‘s parental rights.
DISPOSITION
The order denying Mother‘s section 388 petition is affirmed. The appeal from the order denying Father‘s section 388 petition is dismissed as abandoned. The order terminating parental rights is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION
MENETREZ
J.
We concur:
RAMIREZ
P. J.
MCKINSTER
J.